Author: Sushant Shekhar

Court: Supreme Court of India

Bench: Mr. Justice J.B. Pardiwala, Mr. Justice R. Mahadevan

Date of Judgment: 17/10/2025

Relevant Provision/Statutes: Article 32 of the Constitution of India, Protection of Right Act, 2019

Brief Facts:

The petitioner, Ms. Jane Kaushik, who is a transgender woman, filed a writ petition after facing discrimination and humiliation for her transgender identity in her employment. It resulted in her getting terminated from two schools in two different states within the same year.

She holds degrees from Rajasthan, Haryana, Gujarat, and Uttar Pradesh and pursued a Bachelor of Education after undergoing gender affirmative surgery in 2019, all in pursuit of a teaching career.

1. Termination from the First School (Respondent No. 5):

In November 2022, the petitioner was selected for Trained Graduate Teacher in English and Social Science. She worked for only 8 days. After that, she alleged she was subjected to harassment and body shaming by her colleagues and students for her inability to conform to gender norms. She reported to the principal on 01.12.2022, but nothing was done, and two days later she was allegedly pressured to resign under threat of withholding her salary. After that, she receives an e-mail accepting her resignation. In which it said that the communication for her poor performance in the subject of social science was the reason for her termination. When the matter became public, the First School issued a defamation notice of Rs. 1 Crore claiming that it was unaware of her transgender identity at the time of appointment.

2. Termination from the Second School (Respondent No. 4):

After several months of searching for employment, she finally found an opportunity and received an offer letter dated 24.07.2023 from the Second School, which is located in Jamnagar, Gujarat, for the position of English teacher. She submitted all the required documents and also showed her identity documents. Upon showing her transgender identity, the school denied her employment, and she was denied entry into the school and their premises. No such formal termination letter was issued. She served a legal notice on the second school but received no response.

Issues:

1. Whether a positive obligation is cast upon the Union of India and States, respectively, under the constitution of India and the Protection of Rights Act, 2019, along with the rules thereunder, to prevent discrimination against transgender persons?
2. Whether the actions and inaction of the First School and the Second School, respectively, have led to discrimination against the Petitioner on the ground of her gender inequality?
3. If issues (1 and 2) are answered in the affirmative, is the petitioner entitled to any compensation?

Arguments:

Petitioner’s Arguments:

The Petitioner argued that both private schools and State denied her employment due to her gender identity. She seeks enforcement of constitutional rights under Article 14, 15, 17, 19, and 21 and the 2019 Act against both private schools and the state and claims compensation for the State’s failure to put a protection mechanism in place.

First School’s Arguments (Respondent No. 5)

First school denied discrimination; they said that the termination was due to misconduct and poor performance, not gender identity.

Second School’s Arguments (Respondent No. 4)

Second School says that the petitioner is hired for employment on a contractual basis, not because of her gender identity; they argued that private employees only have a negative duty under the 2019 Act, not a positive duty to hire. 

Judgment:

On Issue 1—Positive Obligations of the State:

The Court states that the Union of India and the states are under a positive constitutional obligation to prevent discrimination against transgender persons. The Court found that more than five years after the enactment of the 2019 Act and over time since the landmark NALSA judgment (2014) 5 SCC 438, the provisions of the statute have not been implemented, reducing their protection. The Court observed that the Union Government response before Parliament in March 2023, stating that there was no policy under consideration for the employment of transgender persons, was a mandated disregard of the 2019 Act and prior directions of this Court in Shanavi Ponnusamy (order date 08.09.2022). 

On Issue 2—Discrimination by the Schools:

The Court found that both schools discriminated against the petitioner on the ground of her gender identity. In The First School, the court found that the petitioner was harassed in their workplace and forced to resign under threat of her withholding salary and then denied re-employment on the basis of transgender identity. In the Second School, the court observed the denial of employment upon disclosure of transgender identity with no formal termination. Therefore, this is a direct discrimination under sections 3 and 9 of the 2019 Act. The court noted that private schools, as establishments under the 2019 Act, are fully bound by its anti-discrimination provisions, and the fundamental rights under Articles 15, 16, and 21 also operate to protect transgender persons even in private employment.

On Issue 3—Compensation:

The Court decided to entitle the compensation to the petitioner from both private schools and from the state for the violation of her fundamental rights. On the basis of Jeeja Ghosh v. Union of India (2016) 7 SCC 761, the Court constitutes its power to award compensation in writ proceedings for violations of fundamental rights to such jurisdictions.

Ratio Decidendi / Legal Reasoning:

1. Any discrimination on the ground of gender identity by the state or a private establishment is covered under the 2019 Act, which is constitutionally prohibited.
2. The term “sex” used in Articles 15 and 16 is not just limited to the biological sex of male or female but is intended to include people who consider themselves to be neither male nor female.
3. Indirect discrimination under Article 15 includes facially neutral policies or systematic inaction that disproportionately disadvantage a group. The State’s failure to implement the 2019 Act, which excludes transgender persons from employment, constitutes such discrimination.
4. Private schools are bound by the Act’s anti-discrimination provisions, which are defined in the 2019 Act. 
5. A deliberate failure to enact or implement measures required to eliminate structural discrimination can itself constitute a violation of the right against discrimination under Article 15 and the right to life under Article 21.
6. The Supreme Court can award compensation in writ proceedings under Article 32 against both state and private establishments for violation of fundamental rights, including rights of transgender persons in employment.